Privacy lobby challenges NSA spying in highest court

James Risen

A privacy rights group will file an emergency petition with the Supreme Court to stop the National Security Agency's surveillance program that collects the telephone records of millions of Americans.

The group, the Electronic Privacy Information Centre, said it is taking the extraordinary legal step of going directly to the Supreme Court because the sweeping collection of the phone records of US citizens has created ''exceptional circumstances'' that only the nation's highest court can address.

Protesters tie red, white and blue ribbons to the fence of a National Security Agency facility being built in Utah. Photo: Bloomberg

It will take its case to the Supreme Court because it could not challenge the NSA program at the secret court that approved it, the Foreign Intelligence Surveillance Court, and lower federal courts did not have the authority to review FISC orders.

In its petition, the group said the FISA court had ''exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorised investigation''.

The suit is the latest in a series of legal challenges to the NSA's spying operations filed over the past month after disclosures by a former NSA contractor, Edward Snowden.

Based on a document leaked by Mr Snowden, The Guardian revealed last month the FISA court had issued an order in April directing Verizon Business Network Services to turn over all phone records for its customers to the NSA.

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Within days, the American Civil Liberties Union filed a federal suit in New York. Larry Klayman, a lawyer who runs Freedom Watch, filed a class-action suit in a federal court on behalf of Verizon customers.

Marc Rotenberg, executive director of the privacy centre, said its lawsuit would be the first to directly challenge the authority of the court to approve the phone records' collection under the Patriot Act.

Alan Butler, a lawyer for the group, said the judge ''lacked the authority to require production of all domestic call detail records''. He noted the Patriot Act provision cited by the court required that the records produced be ''relevant'' to an authorised national security investigation. ''It is simply implausible that all call detail records are relevant,'' Mr Butler said.